HKSAR v. DOVALE RAJIV OMIHR

DCCC 441/2024

[2025] HKDC 846

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 441 OF 2024

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REASONS FOR VERDICT

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1.  The defendant has been charged with one count of trafficking in dangerous drugs[1]. The defendant pleaded not guilty to the charge but guilty to possession of dangerous drugs.  His plea was not accepted by the prosecution.

Prosecution case

2.  Basically, the prosecution case was not challenged.  Most of the facts were admitted by way of Admitted Facts and some witness statements were admitted under section 65B of the Criminal Procedure Ordinance, Cap 221.

3.  The defendant is a Dutch national.  He arrived at Hong Kong on 12 November 2023 as a visitor and was permitted to remain in Hong Kong until 19 February 2024.

4.  At around 9:32pm on 18 December 2023, the defendant was intercepted and searched by DPC 18563 near Lan Kwai Fong, Central.  An “eclipse” candy box was found from the defendant’s front trousers’ pocket.  The candy box contained (a)  8 transparent re-sealable plastic bags containing a total of 4.66 grammes of a solid containing 3.04 grammes of cocaine, and (b)  4 transparent re-sealable plastic bags containing a tablet containing 0.09 gramme of MDMA and a total of 1.54 grammes of a solid containing 1.13 grammes of MDMA.

5.  At the time of arrest, the defendant had cash in the sum of HK$8,380. 

6.  Defendant’s residence was searched and no illegal items were found.

7.  In the subsequent video-recorded interview (VRI), the defendant admitted purchasing the drugs for self-consumption.

8.  The daily consumption of cocaine is 0.4 gramme/day at street purity while the typical dose of MDMA per occasion is 1-2 tablets or 0.15 gramme per occasion.  1.54 grammes of solid containing 1.13 grammes of MDMA could potentially be formulated into 2-5 MDMA tablets.  

9.  In December 2023, the street value of 4.66 grammes of cocaine (powder)  and cocaine (crack)  are respectively HK$4,259 and HK$6,035 while the street value of 1 tablet of MDMA is HK$57. 

Defence case

10.  After I ruled a case to answer, the defendant elected not to give evidence nor call defence witnesses.

11.  The defendant relied on what he said in his VRI as his case, i.e. he bought the drugs for self-consumption. 

Directions

12.  Prosecution has the burden to prove the requisite elements of the offence beyond reasonable doubt.  The defendant has no burden of proof.

13.  The defendant elected not to give evidence nor call defence witnesses. This is his right and I will not draw any adverse inference against him for exercising his right.  On the other hand, it means that there is no evidence from the defendant to undermine, contradict or explain the evidence put by the prosecution.  

14.  The defendant’s admissions in his VRI were admitted as part of the evidence.  The defendant did not give evidence and his version in the VRI could not be tested by cross-examination.   Nevertheless, I still have to decide if what he said in the VRI is true or may be true.  If what he said is true or may be true, then he should be acquitted. 

15.  I bear in mind the defendant has no criminal conviction record when considering his credibility and propensity.

16.  I also remind myself that if I am to draw inference, the inference must be drawn from facts proved and that the inference is the only irresistible inference to be drawn from the proved facts. 

Analysis

17.  The defendant does not dispute he was in possession of the drugs.  The only issue in this case is whether he possessed the drugs for the purpose of trafficking.

18.  The prosecution suggested the following facts supported the only irresistible inference that the defendant possessed the drugs for trafficking:

(1)  the defendant’s failure to recognise the MDMA seized from him which was incompatible with his claim of self-consumption;

(2)  the packaging of the dangerous drugs allows for ready distribution;

(3)  large sum of cash found on the defendant was incompatible for a visitor travelling in Hong Kong;

(4)  the large sum of cash was consistent with item usually found from drug traffickers; and

(5)  no paraphernalia for smoking/inhaling/ingesting dangerous drugs were found on the defendant or at his home.

19.  The defence replied as follows:

For (1), the defendant admitted in his VRI that he knew there was another type of drug in the candy box although he did not know what that was. This contention was supported by expert witness’ evidence that sometimes drug trafficker might gift a small amount of drug to his customer;

For (2), while the packaging might allow for ready distribution, it might also be consistent with someone who bought drugs in that packaging[2];

For (3)  and (4), while possession of large amount of cash might be consistent with someone being a drug trafficker, given the defendant was a visitor in Hong Kong and there was no evidence of his having with him credit card or other payment method, the fact that he had cash of a few thousand dollars with him was not incompatible with him being a visitor; and

For (5), in light of the expert witness’ evidence about the method of consumption of cocaine and MDMA, it was not unusual not to find any drug taking equipment on the defendant or at his home. Further, no drug trafficking paraphernalia such as re-sealable plastic bags or electronic scale was found at defendant’s home was consistent with the contention that he was not a trafficker, bearing in mind the tenancy of the premises commenced a year before the offence date.

20.  Defence also submitted the admissions in the VRI were in line with possession of dangerous drugs and the defendant’s plea to possession of dangerous drugs.  Despite the defendant had not given evidence and had not been cross-examined, it was said that the interview was dynamic and interactive and the defendant had given coherent answer to the questions.  It was submitted that more weight could be given on the defendant’s reaction to the officer’s questions. 

21.  Finally, defence submitted the circumstantial evidence supported the defendant’s contention that the drugs were for self-consumption:

(1)  the defendant was not intercepted in the small hours of a day or at the rear alley;

(2)  the quantity of drugs was not large. With reference to the daily dosage of the drugs, all the drugs could be consumed within a week;

(3)  the candy box was not transparent such that the defendant might not know the packaging of the drugs;

(4)  expert evidence confirmed both types of drugs could be taken by oral intake;

(5)  it was reasonable to expect the defendant to have some cash with him given he was a visitor in Hong Kong;

(6)  the packaging of the drugs by itself would not support trafficking[3];

(7)  expert witness confirmed sometimes trafficker would gift small amount of drug to his customer. When compared the price and quantity of MDMA to cocaine in this case, the price and quantity of MDMA is much lower/smaller. This supported the defendant’s contention in the VRI that he knew there was another drug in the box but he was not sure what that was; and

(8)  the fact that the defendant was able to afford to pay HK$12,000 per month for the rented apartment in Hong Kong supported the contention that he could afford to buy drugs and that the money found on him was not proceeds from trafficking.

22.  Having considered the evidence and the relevant authorities referred by the defence, I accept the defence submissions as stated above.  I find the evidence in this case cannot support the only irresistible inference that the defendant possessed the drugs for trafficking.  I am of the view that the evidence is more consistent with the defendant possessing the drugs for self-consumption.  In the circumstances, I find the prosecution has failed to prove beyond reasonable doubt the defendant possessed the drugs for trafficking.  I find the defendant not guilty of trafficking in dangerous drugs but guilty of possession in dangerous drugs.